ASLH's New Honorary Fellows: António Manuel Hespanha

Professor António
Manuel Hespanha is generally regarded as the leading Portuguese
historian of his generation and as a scholar whose work has radically
revised the legal, political and cultural history of early modern Europe
and of the Portuguese empire in Brazil and China.

António
Manuel Hespanha was born in Coimbra, Portugal, in 1945. He earned a
law degree from the University of Coimbra in 1967 and a Ph.D. in
political, legal and constitutional history from the New University of
Lisbon in 1987. He recently retired from the New University of Lisbon
Law School as Professor, Chairman of the Scientific Board, President of
the Academic Assembly, and Director of the Center for Studies on Law in
Society. He is also Honorary Research Fellow of the Institute for Social
Sciences of the University of Lisbon. In the course of his academic
career, Hespanha has held several different positions in Portuguese
academia: he first taught at the Coimbra University Law School, the
University of Lisbon Law School, and – unusually for a European
academic—was also a faculty member in the History Department of the New
University of Lisbon. He has served as a visiting professor in the
history of law at the Autonomous University of Madrid, Yale University,
and the University of Macao, among other places.He has published 17 books and over 150 articles. These include: A História do Direito na História Social (1977) (Legal History in Social History); História das Instituições. Épocas medieval e moderna (1982) (A History of Institutions in the Middle Ages and Early Modern Times); Poder e Instituições na Europa do Antigo Regime (1984) (Power and Institutions in Ancien Régime Europe); La gracia del derecho (1993)(The Grace of the Law); Cultura Jurídica Europeia. Síntese de um milénio (1996) (European Legal Culture: Synthesis of a Millennium); and Guiando a mão invisível. Direito, Estado e lei no liberalismo monárquico português (2004)
(Guiding the Invisible Hand: Law, State, and Legislation in the
Portuguese Liberal Monarchy). He is also the founder and former editor
of two influential academic journals : Penélope: Fazer e desfazer a história and Thémis: Revista da Faculdade de Direito da Universidade Nova de Lisboa.

Professor
James Amelang of the Autonomous University of Madrid tells us that
Hespanha “has distinguished himself as the central figure within a small
but influential international cohort whose research and publications
have led to a radical reshaping of the political, legal, and
institutional history of Iberia from the fifteenth to eighteenth
centuries. Strongly influenced by Italian legal history and theory,
Hespanha and his collaborators have transformed the traditional view of
early modern Portugal and Spain as simple models of absolutist rule...
and have offered instead a more balanced reading of the theory and
practice of political systems whose functioning rested on extensive and
high complex levels of internal transaction and negotiation. …
Hespanha's markedly nuanced view of this interplay has led most notably
to a lengthy interrogation of the centerpiece institution of early
modern history, the state, whose real power and prerogatives he has
repeatedly and pointedly called into question.” Professor Jean Frédéric
Schaub of the Ecole des Hautes Etudes en Sciences Sociales, who calls
Hespanha “one of the most influential scholars in Europe and Brazil in
the field of history of law”, says that Hespanha and his group

demonstrated
that Ancien Régime legal culture was stronger and by all measures
deeper rooted than any political regime of the time. [These scholars]
developed the paradigm of jurisdiction, against the traditional
state-centered narrative of the shaping of European legal systems, from
the Middle Ages to liberal modernity. In the group, the originality of
Hespanha rests on two major contributions. First, he certainly is the
scholar who has paid the greatest attention to the sociology of the
jurists and lawmakers who, de facto, gave birth to the theory of their
own legitimacy and importance in the social system. Second, he is the
scholar who extended the jurisdiction paradigm beyond the European
experience, by taking into account the colonial dimensions of European
politics.

Professor Tamar Herzog of Harvard gives us an example
of his critique of the “absolutist” state as applied to a specific
topic, that of royal grace. She argues that, relative to Hespanha, even
Foucault “tended to privilege the coercive power – or claims for
coercive power – of the early modern state. “Hespanha, on the contrary,
called us to center our attention on the alternation between a menacing
and a benevolent king, a king who is a warrior and a king who is a
father, thus suggesting a more complex, and a more interesting,
portrayal of the early modern state.” Inviting us to think about law
before the state, Hespanha

explains that medieval law was a
pluralistic system in which multiple legal orders co-existed alongside
other normative orders such as religion. Its role was to make
transparent social relations already in existence and ensure the
continuation of the status quo. For medieval jurists order emerged
spontaneously and naturally. Because of its pluralistic character, most
of their work was directed at harmonizing what otherwise would seem as
contradictions between Roman, Canon, Feudal, Local and even popular
(rustic) Law. They also sought to harmonize old and newer norms as,
contrary to today, older norms did not prescribe by the elaboration of
new ones. That is, rather than choosing between different sources
preferring one to the other, they created a whole. In the end, this
meant that jurists did not simply apply a general law to particular
circumstances. Instead, they needed to create the law by balancing many
systems and normative orders that would ensure a solution [that],
according to the standards of the time, would be just because it would
allow the return of order. In that sense, they were practical
technicians of what is possible and what is just.

Hespanha, Herzog explains, also introduces “the English-speaking world to a continental version of the English common law.

[He]
argues that it was never as foreign and as different as English lawyers
have assumed or argued. Of Continental origin, in some odd way it
reproduced classical Roman law in its emphasis on procedural remedies
and in tying the grant of remedies to the existence of rights.
Furthermore, ancient constitutions were also invoked in the rest of
Europe, and were espoused also by the different parliaments operating
there. The emphasis on difference, he further argues (and here somewhat
in line [with], although differently [from] Pocock) that the sixteenth
and seventeenth century religious and political rupture with the
continent led English lawyers to reject all that might smell of pope and
empire. Yet, [ironically], from a continental point of view, rather
than protecting local and traditional liberties these developments
further enhanced the power of kings.

Herzog concludes that
Hespanha’s scholarship is “clear and concise, yet it transforms the
listener and the reader. Like Foucault’s or Bourdieu’s…his thinking is
revolutionary without ever needing to hide behind great formulas or
complicated words. It transforms the way you think about both past and
present. … Among all the senior colleagues I have known during my 25
years as a student and as a university professor here at the USA and
elsewhere, I never met anyone who so wonderfully combined intellectual
brilliance, intellectual integrity, and intellectual seriousness, with
the same amazing capacity to guide and inspire those around him.”

Professor
Hespanha’s originality, his comprehensive grasp of the history of legal
cultures both in Europe and in Portugal’s overseas empire, his
distinctive blend of legal, social, cultural and intellectual histories
of law, and his influence on many generations of scholars, amply justify
his naming as an Honorary Fellow.